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Zumel v. Lynch

United States Court of Appeals, Ninth Circuit

September 29, 2015

JOSE L. ZUMEL, Petitioner,
v.
LORETTA E. LYNCH, Attorney General, Respondent

Argued and Submitted, San Francisco, California May 12, 2015.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-192-469.

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SUMMARY[**]

Immigration

The panel granted Jose L. Zumel's petition for review of the Board of Immigration Appeals' decision finding him inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity.

The panel held that the BIA correctly found that an attempted coup against the Philippine government in 1989 was unlawful under Philippine law, and that Zumel " engaged" in the coup by planning it. For purposes of this appeal, the panel assumed that the question of coup participants' " intent to endanger, directly or indirectly, the safety of one or more individuals" under § 1182(a)(3)(B)(iii)(V)(b) is a factual question, and held that the BIA erred in failing to apply the clear error standard of review to the Immigration Judge's finding that the coup participants lacked such intent. The panel remanded for the BIA to review the IJ's factual findings regarding intent for clear error.

Carrie Rosenbaum (argued), Law Offices of Carrie Rosenbaum, Alameda, California; Nancy Ann Fellom, Law Offices of Fellom and Solorio, San Francisco, California, for Petitioner.

Mark Christopher Walters (argued), Senior Counsel for National Security; Stuart F. Delery, Principal Deputy Assistant Attorney General; Michael P. Lindemann, Chief, National Security Unit, United States Department of Justice, Office of Immigration Litigation, Appellate Court Section, Civil Division, Washington, D.C., for Respondent.

Before: Diarmuid F. O'Scannlain and Sandra S. Ikuta, Circuit Judges and James A. Teilborg,[*] Senior District Judge. Opinion by Judge Ikuta.

OPINION

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IKUTA, Circuit Judge:

Jose Maria Carlos De Leon Zumel, a native and citizen of the Philippines, petitions for review of a decision of the Board of Immigration Appeals (BIA) ruling that he is inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I) for having engaged in terrorist activity, and dismissing his appeal from the Immigration Judge's (IJ) order of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252, and hold that the BIA did not err when it determined that an attempted coup against the Philippine government was unlawful under Philippine law, and that Zumel " engaged" in the coup by planning it. But assuming that the question whether the coup participants lacked an " intent to endanger, directly or indirectly, the safety of one or more individuals," 8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b), is a question of fact, the BIA erred in failing to apply clear error review to the IJ's finding that the coup participants lacked such intent. See 8 C.F.R. § 1003.1(d)(3)(i). We therefore grant the petition for review and remand to the BIA.

I

This appeal relates to Zumel's activities during a period of political instability in the Philippines from 1986 to 1989. In 1986, Zumel was serving as a general in the Philippine Air Force. In February of that year, then-President Ferdinand Marcos held snap elections. Despite allegations of election fraud, the Philippine Congress adopted a resolution declaring that Marcos received the highest numbers of votes and proclaiming him president. However, a mass demonstration of support for Marcos's opponent, Corazon Aquino, ultimately led Marcos to flee to the United States in exile and Aquino to take power.

After Aquino took power, Zumel became a leader of an opposition group known as Alyansang Tapat sa Sambayanan (ALTAS). ALTAS was a faction of the military that believed Marcos was the legitimate elected leader of the Philippines. To demonstrate their continued support for Marcos, ALTAS members, including Zumel, attended a swearing-in ceremony for Marcos's vice-presidential running mate at the Manila Hotel on July 6, 1986. As a result of Zumel's attendance at the swearing-in ceremony, the Air Force removed him from active duty and placed him on an on-call assignment.

Despite his removal from active duty, Zumel remained active in ALTAS. In January 1987, ALTAS staged a coup against the Aquino government. Zumel participated in planning the coup, including deciding which bases to target. In order to destabilize the Aquino government and pave the way for Marcos to return to power, ALTAS decided to take over two air force bases, Villamor Air Force Base (Villamor AFB) and Sangley Air Force Base (Sangley AFB), and a television

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station in Manila. The ALTAS forces took over Villamor AFB for about one hour, but succeeded in taking over Sangley AFB for two days. During that period, ALTAS detained the Sangley AFB commander on the premises and prevented him from communicating with his troops. After two days, the Philippine military forces supporting Aquino suppressed the attempted takeover.

Zumel was not involved in tactical decisions about how best to deploy the ALTAS forces on the ground. Rather, his role during the operation was to coordinate the actions of the opposition air force units and send reinforcements to assist the troops if necessary. While the attempted coup was underway, Zumel monitored the radio from a safe house. He was unable to communicate with the ALTAS leaders at Sangley AFB, however, because the battery on his radio died, and he never sent any reinforcements to Villamor AFB because the Philippine military regained control too quickly.

After the January 1987 coup attempt failed, Zumel went underground, and the Aquino government issued warrants for his arrest. According to the government, the warrants charged Zumel with violating the Philippine Articles of War, specifically Article 67 (" Mutiny or Sedition" ) and Article 117 (" Officers, Separation from Service" ). See An Act for Making Further and More Effectual Provisions for the National Defense by Establishing a System of Military Justice for Persons Subject to Military Law, Comm. Act No. 408, arts. 67, 117 (1938), 2 P.L. Comm. Ann., p. 781, 805, 817 (Phil.). While underground, Zumel continued to take a leadership role in ALTAS, and served as the point of contact for individuals ...


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